People v. Thomas
| Decision Date | 27 October 2014 |
| Docket Number | No. 3–12–0676.,3–12–0676. |
| Citation | 24 N.E.3d 1 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Norman E. THOMAS, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier and Adrienne River, both of State Appellate Defender's Office, of Chicago, for appellant.
Terence M. Patton, State's Attorney, of Cambridge (Robert M. Hansen, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
delivered the judgment of the court, with opinion.
¶ 1 After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance (720 ILCS 570/ 402(c) (West 2008)) and resisting a peace officer (720 ILCS 5/31–1(a)
, (a–7) (West 2008)). The trial court sentenced defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886–U. Following remand, defendant filed motions for a new trial and to reconsider his amended motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in part, modify in part, and remand for further proceedings.
¶ 3 Defendant was charged by amended information with unlawful possession of a controlled substance (720 ILCS 570/402(c)
(West 2008)), resisting or obstructing a peace officer (720 ILCS 5/31–1(a), (a–7) (West 2008)), and obstructing justice (720 ILCS 5/31–4(a) (West 2008)). Defense counsel filed a motion to suppress evidence, arguing that excessive force had been used by the police. The motion stated that the car defendant was riding in was stopped by Officer William Rivord for failing to dim its bright lights. Defendant and the driver, William Gordon, told Rivord that there was nothing illegal in the car and they did not consent to a search. Rivord conducted a free-air sniff with his canine unit. After the search, Rivord told defendant and Gordon that the dog had alerted and he was going to search the vehicle. The motion alleged that Rivord and Sergeant Pat Clapper used excessive force to obtain evidence from defendant after he exited the vehicle.
¶ 4 At the hearing on defendant's motion, Gordon testified that on the night of May 3, 2008, he was driving defendant's blue Lincoln when he was stopped by Rivord for failing to dim his bright lights. Defendant was a passenger in the vehicle and was unable to drive because he did not have a valid driver's license. During the stop, Rivord instructed Gordon to start the Lincoln and roll the windows up while Rivord walked his dog around the car. Thereafter, Rivord told Gordon that the dog had alerted and ordered Gordon and defendant out of the car. As Rivord escorted Gordon out of the Lincoln, Gordon heard a second police officer yell at defendant. Gordon saw the second officer call for backup as he was choking defendant on the ground.
¶ 5 Defendant testified that on the date of the stop, he was riding in his Lincoln with Gordon when the vehicle was stopped by Rivord. Rivord asked for Gordon's driver's license, vehicle registration, and proof of insurance. After obtaining the documents, Rivord instructed defendant and Gordon to wait in the car while he returned to his patrol car. Thereafter, Rivord handed the documents back, and he asked Gordon to roll up the windows and turn on the heat because he was going to walk his dog around the car. Following the free-air sniff, Rivord directed defendant and Gordon to exit the car. As defendant got out of the car, two prescription Vicodin
pills fell off of his coat and onto the ground. Defendant picked up the pills and put them in his mouth. At that point, Clapper forced defendant to the ground, ordered defendant to open his mouth, and choked defendant. Defendant opened his mouth and did not resist the officer. Eventually, defendant lost consciousness and awoke the following day in a hospital.
¶ 6 On cross-examination, defendant stated that he had swallowed the Vicodin
pills that fell on the ground, and he did not recall Clapper's order to step away from a baggie that fell to the ground as he exited the vehicle. Defendant reported that he dropped a piece of plastic that contained the Vicodin pills, but contended that he did not have a baggie. Defendant did not take the pills earlier in the stop because he forgot about them while he was looking for the documents that Rivord had requested.
¶ 7 Rivord testified that he stopped a blue Lincoln at approximately 11:30 p.m. on May 3, 2008, for driving with its bright lights on. Initially, Rivord approached the driver's side window and asked for Gordon's driver's license and proof of insurance. After receiving the documents, Rivord advised Gordon and defendant that he was a canine officer and asked if there was anything in the Lincoln that he needed to know about. Defendant and Gordon replied in the negative, and Rivord said that he was going to conduct a free-air sniff. Rivord asked Gordon to roll up the vehicle windows and turn the heat on. Rivord “immediately, before doing anything else, got [his] dog out and walked the dog around the car.” The dog alerted on defendant's side of the Lincoln by the passenger door. Rivord returned the dog to his patrol car and reapproached the Lincoln. Sometime after the stop began, Clapper arrived at the scene.
¶ 8 Following the dog alert, Rivord approached the driver's side door, and Clapper walked up to the passenger door. Rivord informed defendant and Gordon of the dog alert and directed them to exit the vehicle. As Rivord and Gordon reached the back corner of the Lincoln, Rivord saw defendant get out of the car, and he heard Clapper command defendant to leave something on the ground. Defendant bent over, picked something up, and placed it in his mouth. Clapper told Rivord that defendant had put a baggie containing a white substance in his mouth, and he grabbed defendant. Rivord ran to Clapper's assistance, and the officers and defendant fell to the ground in a struggle. Defendant did not obey the officers' commands to place his hands behind his back or to open his mouth. Rivord saw what appeared to be chewed-up pieces of crack on defendant's lips and tongue. Eventually, the officers restrained defendant and put pieces of the substance from defendant's mouth in an evidence bag and bagged pieces of the substance that were lying on the ground.
¶ 9 On cross-examination, Rivord stated that he began the free-air sniff five to seven minutes into the stop. Rivord said that the substance in defendant's mouth did not look like a prescription pill and, based on his training, he thought the substance was chewed-up pieces of crack cocaine. During a search of the vehicle, officers discovered cocaine between the driver and passenger seats.
¶ 10 The trial court found that Rivord was a credible witness, there was probable cause for the free-air sniff, and there was no delay. The trial court denied defendant's motion to suppress.
¶ 11 On June 16, 2009, the court dismissed the obstructing justice charge. Following a stipulated bench trial, defendant was found guilty of unlawful possession of a controlled substance and resisting a peace officer. The trial court sentenced defendant to 30 months' conditional discharge, and defendant appealed.
¶ 12 In the first appeal, we held that the parties and the court intended that the stipulated proceedings were not to operate as a guilty plea. People v. Thomas, 2011 IL App (3d) 090886U. As a result, we remanded the cause to the trial court for admonishments pursuant to Illinois Supreme Court Rule 605(b)
(eff. Oct. 1, 2001).
¶ 13 Following the remand, defendant filed a motion for new trial and to reconsider his amended motion to suppress. At the reconsideration hearing, Rivord testified that he stopped the vehicle defendant was riding in for failing to dim its headlights in the face of oncoming traffic. Defendant testified, in response, that there was no oncoming traffic. The trial court found Rivord's testimony more credible and denied the motion to suppress. Defendant appeals.
¶ 15 On appeal, defendant argues that: (1) trial counsel rendered ineffective assistance when he failed to argue that the free-air sniff unlawfully prolonged the traffic stop; (2) the evidence was insufficient to sustain his conviction of resisting a peace officer and possession of a controlled substance; (3) the officer's request to roll up the windows and turn on the heater prior to the dog sniff was an unlawful seizure; and (4) the dog-sniff search was an unreasonable search of the vehicle's interior.
¶ 17 Defendant argues that reversal of the trial court's ruling on his motion to suppress is warranted for two reasons: (1) he received ineffective assistance of counsel; or (2) he was unlawfully seized and searched as result of the officer's orders to roll up the vehicle windows and turn on the heater. In reviewing a trial court's ruling on a motion to suppress evidence, we apply a two-part standard of review. People v. Cosby, 231 Ill.2d 262, 271, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008)
. A trial court's findings of fact will only be reversed where they are against the manifest weight of the evidence. People v. Hackett, 2012 IL 111781, ¶ 18, 361 Ill.Dec. 536, 971 N.E.2d 1058. We review de novo the trial court's ultimate legal ruling as to whether suppression is warranted. Id.
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State v. Driscoll
...F.3d 867, 870–72 (8th Cir.2009)(dog sniff constitutional when traffic stop not prolonged unreasonably); People v. Thomas,388 Ill.Dec. 93, 24 N.E.3d 1, 6–7 (Ill.App.Ct.2014)(dog sniff constitutional when performed during lawful traffic stop not prolonged unreasonably); State v. Sellars,222 N......